Trespass

Any misfeasance or act of one man, whereby another is injuriously treated or damnified. 3 Bl. Comm. 208; 7 Conn. 125. Any unlawful act committed with violence, actual or implied, to the person, property, or rights of another. Any unauthorized entry upon the realty of another, to the damage thereof. The word is used oftener in the last two somewhat restricted significations than in the first sense here given. In determining the nature of the act, neither the amount of violence or the intent with which it is offered, nor the extent of the damage accomplished or the purpose for which the act was committed, are of any importance; since a person who enters upon the land of another, in so doing, commits a trespass. 2 Humph. (Tenn.) 325; 6 Johns. (N. Y.) 5. It is said that "some" damage must be committed to make an act a trespass. It is undoubtedly true that damage is required to constitute a trespass for which an action will lie; but, so far as the tort itself is concerned, it seems more than doubtful if the mere commission of an act affecting another, without legal authority, does not constitute trespass, though, until damage is done, the law will not regard it, inasmuch as the law does not regard trifles. The distinction between the different classes of trespass is of importance in determining the nature of the remedy. A trespass committed with force is said to be done "vi et armis;" one committed by entry upon the realty, "by breaking the close." In Practice. A form of action which lies to recover damages for the injury sustained by the plaintiff, as the immediate consequence of some wrong done forcibly to his person or property, against the person committing the same. Force is the essential of the action, and distinguishes it from "trespass on the case." TRESPASS DE BONIS ASPORTATIS (Lat. de bonis asportatis, for goods which have been carried away).

In practice. A form of action brought by the owner of goods to recover damages for unlawfully taking and carrying them away. 1 Me. 117. It is no answer to the action that the defendant has returned the goods. 1 Bouv. Inst. note 36 (H).

An unlawful act committed with violence, actual or implied, causing injury to the person, property, or relative rights of another. Any unlawful act committed with violence, actual or implied, to the person, property, or rights of another. Any unauthorized entry upon the realty of another to the damage thereof. The wanton and unnecessary destruction of the property of another in removing it where there is a right to do so, as, for example, in abating a nuisance or putting out of the way an obstruction' of a highway, constitutes a trespass; Beardslee v. French, 7 Conn. 125, 18 Am. Dec. 86. “Throughout the Middle Ages, trespass is regarded as a crime Maitland, 2 Sel. Essays Anglo Amer. Leg. Hist. 589. In determining the nature of the act, neither the amount of violence or the Intent with which it is offered, nor the extent of the damage accomplished or the purpose for which the act was committed, are of any importance: since a person who enters upon the land of another without leave, to lead off his own runaway horse, and who breaks a blade of grass in so doing, commits a trespass; Heermance v. Vernoy, 6 Johns. (N. Y.) 6. It is said that some damage must be committed to make an act a trespass. It is undoubtedly true that damage is required to constitute a trespass for which an action will lie; but, so far as the tort Itself Is concerned, it seems more than doubtful if the mere commission of an act affecting another, without legal authority, does not constitute trespass, though until damage is done the law will not regard it, inasmuch as the law does not regard trifles. See infra. The distinction between the different classes of trespass is of importance in determining the nature of the remedy. A trespass committed with force is said to be done vi et armis; one committed by entry upon the realty, by breaking the close. In Practice. A form of action which lies to recover damages for the injury sustained by the plaintiff, as the immediate consequence of some wrong done forcibly to his person or property, against the person committing the same. The action of trespass, properly so called, is distinguished from trespass on the case, which is an action for injuries committed without force, and is usually termed simply case ( q. v.). In states where common law forms of actions are still used, the distinction between trespass and trespass on the case is generally abolished by statute and a declaration good for either is good for both. In other states, either action is known merely as an action of tort and in others as a civil action. The action lies for injuries to the person of the plaintiff, as, by assault and battery, wounding, imprisonment, and the like; Beecher v. Parmele, 9 Vt. 352, 31 Am. Dec. 633; person of another, whereby a direct injury is done to the plaintiff in regard to his rights as parent, master, etc.; Akerley v. Haines, 2 Caines (N. Y.) 292; Hornketh v. Barr, 8 S. & R. (Pa.) 36, 11 Am. Dec. 568. It does not lie for mere non-feasance, nor where the matter affected was not tangible. An action of trespass at common law will lie in a state court by the owner of one vessel against the owner of another for damages by tire at a wharf; Chappell v. Bradshaw, 128 U. S. 132, 9 Sup. Ct. 40, 32 L. Ed. 3G9. The action lies for injuries to personal property, which may be committed by the several acts of unlawfully striking, chasing if alive, and carrying away to the damage of the plaintiff, a personal chattel; 1 Wins. Saund. 84; of which another is the owner and in possession; Brainard v. Burton, 5 Vt. 97; and for the removal or injury of inanimate personal property; Robinson v. Mansfield, 13 Pick. (Mass.) 139; Betts v. Lee, 5 Johns. (N. Y.) 348, 4 Am. Dec. 368; of which another has the possession, actual, or constructive; Daniels v. Pond, 21 Pick. (Mass.) 369, 32 Am. Dec. 269; Hoyt v. Gelston & Schenck, 13 Johns. (N. Y.) 141; Dallam v. Fitler, 6 W. & S. (Pa.) 323; without the owner’s assent. A naked possession or right to immediate possession is sufficient to support this action; Carter v. Simpson, 7 Johns. (N. Y.) 535; Hower v. Geesaman, 17 S. & R. (Pa.) 251; Whitney v. Ladd, 10 Vt. 165. An action lies for an unintentional act of trespass, even if there is no malice; Guille v. Swan, 19 Johns. (N. Y.) 381, 10 Am. Dec. 234; but a man who accidentally shoots another, without negligence, is not liable in an action of trespass; [1891] 1 Q. B. 86. See Wilson v. Live Stock Co., 153 U. S. 39, 14 Sup. Ct. 768, 38 L. Ed. 627; Trespasser. The action lies also for injuries to the realty consequent upon entering without right upon another man’s land (breaking his close). The inclosure may be purely imaginary; Dougherty v. Stepp, 18 N. C. 371; but reaches to the sky and to the centre of the earth; Guille v. Swan, 19 Johns. (N. Y.) 3S1, 10 Am. Dec. 234. Where the rightful owner of land, entitled to the immediate possession, attempts to recover it, he is not liable in a civil action of trespass for assault upon a trespasser, if he used no more force than was necessary for the expulsion of the intruder; Souter v. Codinan, 14 R. I. 119, 51 Am. Rep. 364; Low v. Elwell, 121 Mass. 310, 23 Am. Rep. 272; Bristor v. Burr, 120 N. Y. 427, 24 N. E. 937, 8 L. R. A. 710; Walker v. Chanslor, 153 Cal. 118, 94 Pac. 606, 17 L. R. A. (N. S.) 455, and note, 126 Am. St. Rep. 61. But in such case, where the question of criminal liability is raised, it is held that the owner has no right, to resort to force to regain his possession, Com. v. Haley, 4 Allen (Mass.) 318; State v. 536, 93 C. C. A. 616, 22 U R. A. (N. S.) 728; and the same rule was said to apply with respect to recovering possession of real or personal property; Corey v. People, 45 Barb. (N-. Y.) 262. But as to the use of force by the owner to recover possession of them, there is not unanimity of decision. The right to use such force as is reasonably necessary was upheld in Hamilton v. Arnold, 116 Mich. 684, 75 N. W. 133; Wright v. So. Exp. Co., 80 Fed. 85; Heminway v. Heminway, 58 Conn. 443, 19 Atl. 766; Hopkins v. Dickson, 59 N. H. 235; at least short of wounding or the use of a dangerous weapon; Com. v. Donahue, 148 Mass. 529, 20 N. E. 171, 12 Am. St. Rep. 591, 2 L. R. A. 623, and note. In that case the transaction involved but a momentary parting with the possession of money tendered on condition that it was to be accepted as payment in full, and the other party having taken the money and then repudiated the condition, it was retaken by force, which Holmes, J., said was justified “by ancient and modern authority,” citing among others two cases in that court. The case of Churchill v. Hulbert, infra, was entirely different, turning on the right to enter upon the freehold of the other party under an irrevocable license and it can scarcely be considered as deciding the precise point under consideration. The same is true of Drury v. Hervey, infra, which was a case of default on a conditional sale, and it was held that possession of the chattel could not be forcibly resumed. Among the cases which deny the right to use force are Churchill v. Hulbert, 110 Mass. 42, 14 Am. Rep. 57S; Drury v. Hervey, 126 Mass. 519; Bliss v. Johnson, 73 N. Y. 529; Monson v. Lewis, 123 Wis. 583, 101 N. W. 1094; Stanley v. Payne, 78 Vt. 235, 02 Atl. 495, 112 Am. St. Rep. 911, 6 Ann. Cas. 501, 3

Any misfeasance or act of one man whereby another is injuriously treated or damnified. 3 Bl. Comm. 208. An injury or misfeasance to the person, property, or rights of another person, done with force and violence, either actual or implied in law. See Grunson v. State, 89 Ind. 536, 46 Am. Rep. 178; Southern Ry. Co. v. Harden, 101 Ga. 263, 28 S. E. 847; Blood v. Kemp, 4 Pick. (Mass.) 173; Toledo, etc., R. Co. v. McLaughlin, 63 III. 391; Agnew v. Jones, 74 Miss. 347, 23 South. 25; Hill v. Kimball, 76 Tex. 210, 13 S. W. 59, 7 L. R. A. 618.

In the strictest sense, an entry on another's ground, without a lawful authority, and doing seme damage, however inconsiderable, to his real property. 3 Bl. Comm. 209. Trespass, in its most comprehensive. sense, signifies any transgression or offense against the law of nature, of society, or of the country in which we live ; and this, whether it relates to a man's person or to his property.

In its more limited and ordinary sense, it signifies an injury committed with violence, and this violence may be either actual or implied; and the law will imply violence though none is actually used, when the injury is of a direct and immediate kind, and committed on the person or tangible and corporeal property of the plaintiff. Of acfual violence, an assault and battery is an instance; of implied, a peaceable but wrongful entry upon a person's land. Brown.

In practice. A form of action, at the common law, which lies for redress in the shape of money damages for any unlawful injury done to the plaintiff, in respect either to his person, property, or rights, by the immediate force and violence of the defendant.

— Continuing trespass. One which does not consist of a single isolated act but is in its nature a permanent invasion of the rights of another; as, where a person builds on his own land so that a part of the building overhangs his neighbor's land.

— Permanent trespass. One which consists of a series of acts, done on successive days, which are of the same nafure, and are renewed or continued from day to day, so that, in the aggregate, they make up one indivisible wrong. 3 Bl. Comm. 212.-

— Trespass de bonis asportatis. ' (Trespass for goods carried away.) In practice. The technical name of that species of action of trespass for injuries to personal property which lies where the injury consists in carrying away the goods or property. See 3 Bl. Comm. 150, 151.

— Trespass for mesne profits. A form of action supplemental to an action of ejectment, brought against the tenant in possession to recover the profits which he has wrongfully received during the time of his occupation. 3 Bl. Comm. 20a.
—-Trespass on the case. The form of action, at common law, adapted to the recovery of damages for some injury resulting to a party from the wrongful act of another, unaccompanied by direct or immediate force, or which is the indirect or secondary consequence of such act. Co.mmonly called, by abbreviation, "Case." See Munal v. Brown (C, C.) 70 Fed. 968; Nolan v. Railroad Co., 70 Conn. 159, 39 Atl. 115; 43 In R. A. 305; Christian v. Mills, 2 Walk. (Pa.) 131.

— Trespass quare clausum freest. "Trespass wherefore he broke the close." The common-law action for damages for an unlawful entry or trespass upon the plaintiff's land. In the Latin form of the writ, the defendant was called upon to show why he broke the plaintiff's close ; i. e., the real or imaginary structure inclosing the land, whence the name. It is commonly abbreviated to "trespass qu. cL fr." See Kimball v. Hilton, 92 Me. 214, 42 Atl. 394.

— Trespass to try title. The name of the action used in several of the states for the recovery of the possession of real property, with damages for any trespass committed upon the same by the defendant.

— Trespass vi et armis. Trespass with force and arms. The common-law action for damages for any injury committed by the defendant with direct and immediate force or violence against the plaintiff or his property.

In the largest sense, any transgression or oflfense against tho law of natui-e, of society, or of the country, whether to person pr property; in a stricter sense, an injury committed by one person upon another with violence, actual or implied; in the strictest sense, an unlawful entry on land of another, with some damage, however inconsiderable, to his real property; an action for any such injury. Trespass de bonis asportatis: trespass for goods carried away; the name of the action where the injury consists in carrying away the property. Trespass on the case: the action which lies for injuries unaccompanied with force, or where the damage sustained is merely consequential. Trespass qnare clausum tregit: trespass wherefore he broke the close; the action which lies for unlawfully entering on another's land. Trespass vi et arrais: trespass with force and arms; the action for injuries to person or property, whenever the act complained of was done with direct violence, actual or implied.

1. Any injury, jury or misfeasance to arms " [force actual or peace. 3. An unlawful tion at law for any of et armis, brought for writ de cursu, issued estabhshed form, depending a breach of the King's (v. Nisi feceris. Contra ciently obtained jurisdiction, cases of direct or the action eldest son or heir; -vdolating the King's unmarried, or heir's wife; levying war adhering to his enemies; counterfeiting his the chancellor, treasurer, or justices while America, levying war against the United their enemies, giving them aid and comin old English law, the killing of a mashusband by his wife, an ecclesiastical person any person by another, who owes him Formerly, the chief treasurer of England, moneys in the Exchequer, the Chancellor under him. He appointed all revenue and leased Crown lands. The office is are now performed by the Lords Comcosts, half of them, and half of the three fourths added. cucking-stool; -^. Common scold. faciunt collegium: three [may] make a Tresayle: a grandfather's grandfather. Treasure-trove. misfeasance, or nonfeasance. 2. An inperson or property, made " with force and implied in law], a breach of the King's entry on land of another. 4. The acthese trespasses. This is either, A. vi trespasses 2 and 3, the old action on a by the clerks in Chancery according to in the King's courts on a fiction of peace, or contempt of royal authority pacem), whereby the King's courts anand consequently covering most intentional wrong; or, B. on the case, on writs, to tliority of the Statute of Westminster cases of contract, or indirect or etc. Class A. is usually called Case. Trespass de bonis asportatis, per quod servitium amisit, per quare olausum fregit: see those

remedies, is the of an action, instituted for the of damages, for a wrong against the plaintiff, with force; as an assault and against the person; an unentry into his land, and an injury with direct force to personal property. It does not a mere non-feasance, nor the matter affected was not It will be proper to conthis subject with reference to 1, to the person; 2, to perproperty; 3, to real property; when trespass can or cannot justified by legal proceedings. Trespass is the proper remedy assault and battery, woundimprisonment, and the like; also lies for an injury to the rights when occasioned by as for beating, wounding, and a wife or servant, by the plaintiff has sustained a Co. 113; 10 Co. 130. Vide to actions; Per quod, and Pr. 37.; The action of trespass is the remedy for injuries to perproperty, which may be by the several acts of striking, chasing, if alive, carrying away to the damage Saund. &4,n. 2, 3; F. N. B. 86; Bro. Trespass, pl. 407; Toll. Executors, 112; Cro. Jac. 262; of which another is the owner and in possession; but a naked possession or right to immediate possession, is a suffcient title to support this action. 1 T. R. 480; and see 8 John. R. 432; 7 John. R. 6535; 11 John. R. 377; Cro. Jac. 46; 1 Chit. Pl. 165. 3. Trespass is the proper remedy for the several acts of breaking through an enclosure, and coming into contact with any corporeal hereditament, of which another is the owner and in possession, and by which a damage has ensued. There is an ideal fence, reaching in extent upwards, a superficie terra usque ad celum, which encircles every man’s possessions, when he is owner of the surface, and downwards as far as his property descends; the entry, therefore, is breaking through this enclosure, and this generally constitutes, by itself, a right of action. The plaintiff must be the owner, and in ssion. 5 East, R. 485; 9 John. 61; 12 John. R. 183; 11 John. R. 385; Ib. 140. There must have been some injury, however, to entitle the plaintiff to recover, for a man in a balloon may legally be said to break the close of the plaintiff, when passing over it, as he is wafted by the wind, yet as the owner’s possesson is not by that act incommoded, tresspass could not probably be maintained; yet, if any part of the machinery were to fall upon the land, the areonaut could not justify an entry into it to remove it, which proves that the act is not But ee the slightest injury, as treading down the grass, is sufficient. Vide 1 Chit. Pl. 173; 2 John. R. 357; 9 John. R. 113, 377; 2 Mass. R. 127; 4 Mass. R. 266; 4 John. R. 150. lar process of a court of competent jurisdiction, or of a single magistrate having jurisdiction of the subject matter, itis a sufficient justification tu him; but when the court has no jurisdiction and the process is wholly void, the defendant cannot justify under it. Vide Irregularity; Regular and Irregular process. Vide, generally, Bro. Ab. b. t.; Nelson’s Ab. h. t.; Bac. Ab. h. t. we Dane’s Ab. h. t.;-Com. Dig. h. t. "we Vin. Ab. h. t.; the various es can and English Digests, h. t.;. Phil. Ev. 131; Ham. N. P. $3 265; Chit. Pr. Index, h. t.; Rose. Civ. Ev. h. t.; Stark Ev. h. t.